Sahakari Bhoomi Vikas Bank Ltd., JODHPUR V. ITO, BHILWARA

ITA 172/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5235 (ITAT-JODHPUR)
• Duration Of Justice: 10 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 01-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MOURYA
• Assessee Lawyers: S M JAIN
• Keywords: Rectification of order
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.172/JODH/2015 ASSESSMENT YEAR: 2009-10 SAHAKARI BHOOMI VIKASH BANK LTD., 8-C-1, R. C. VYAS COLONY, BHILWARA. PAN :AAAAS9964N VS. THE INCOME TAX OFFICER, WARD 3, BHILWARA APPELLANT RESPONDENT APPELLANT BY SHRI S.M. JAIN, AR RESPONDENT BY SHRI S. L. MOURYA, DR DATE OF HEARING: 15.03.2016 DATE OF PRONOUNCEMENT: 15.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED CIT (A), AJMER DATED 27-02-2015 PASSED IN APPEAL NO .94/2013-2014 FOR ASSESSMENT YEAR 2009-10. 2. SHRI S. M. JAIN, LEARNED AR REPRESENTED ON BEHAL F OF THE ASSESSEE AND SHRI S. L. MOURYA, LEARNED DR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY THE LEARNED AR THAT THE MAIN ISSUE IN THE ASSESSEES APPEAL WAS AGAINST THE ACTION OF THE LEA RNED CIT (A) IN UPHOLDING THE ORDER PASSED U/S 154 OF THE ACT WHEREIN THE AO HAD DENIED THE ASSESSEE 2 ITA NO.172/JODH/2015 THE CLAIM OF ELIGIBILITY U/S 80P OF THE ACT. IT WA S A SUBMISSION THAT THE ISSUE ITSELF WAS A DEBATABLE ISSUE AND THE SAME COULD NOT BE DONE U/S 154 OF THE ACT. 4. IN REPLY, THE LEARNED D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE A O AND THE LEARNED CIT (A). 5. WE HAVE CONSIDERED THE SUBMISSIONS. AT THE OUTSE T, IT IS NOTICED THAT THE ORIGINAL ASSESSMENT IN THE ASSESSEES CASE CAME TO BE PASSED U/S 143 (3) OF THE ACT WHEREIN AFTER CONSIDERING THE VARIOU S ISSUES THE AO HAS COMPLETED THE ASSESSMENT U/S 143 (3) OF THE ACT ACC EPTING THE ASSESSEES CLAIM FOR SET OFF OF BROUGHT FORWARD LOSSES. THIS ORDER OF ASSESSMENT WAS A SUBJECT MATTER OF RECTIFICATION U/S 154 OF THE ACT WHEREIN THE ASSESSEES CLAIM IN RESPECT OF BROUGHT FORWARD BUSINESS LOSS AVAILAB LE FOR BEING SET OFF WAS DENIED. IT IS FURTHER NOTICED THAT IN REPLY TO NOTI CE U/S 154 OF THE ACT THE ASSESSEE HAS SOUGHT FOR 15 DAYS TO FILE REPLY AND E XPLANATION. THE AO ON THE GROUND THAT THE ASSESSEE HAS NOT GIVEN ANY FURTHER REPLY PRESUMED THAT THE ASSESSEE HAS NOTHING TO SAY IN THIS REGARD AND PROC EEDED TO RECTIFY THE ASSESSMENT ORDER. THE PROVISIONS OF SECTION 154 OF THE ACT ARE FOR RECTIFYING ANY MISTAKE APPARENT ON RECORD. THE LEARNED CIT (A) HAS HELD THAT THE ONLY ISSUE IN THE RECTIFICATION ORDER IS REGARDING SET O FF OF BROUGHT FORWARD LOSSES AND THE ISSUE OF DEDUCTION U/S 80P OF THE ACT WAS N OT A SUBJECT MATTER OF 3 ITA NO.172/JODH/2015 RECTIFICATION U/S 154 OF THE ACT. ADMITTEDLY, A PER USAL OF THE SAID RECTIFICATION ORDER AND THE ASSESSMENT ORDER SHOWS THAT THE ISSUE OF DEDUCTION U/S 80P OF THE ACT HAS NOT BEEN DISCUSSED. HOWEVER, THE ASSESS EE DID NOT HAVE ANY INCOME ELIGIBLE FOR DEDUCTION U/S 80P OF THE ACT ON ACCOUNT OF SET OFF OF BROUGHT FORWARD LOSSES IN THE ASSESSMENT PROCEEDING S U/S 143(3) OF THE ACT. IT IS ONLY ON ACCOUNT OF RECTIFICATION BEING DONE I NCOME CAME TO BE TAXABLE AND THE ASSESSEE BEING DENIED THE BENEFIT OF BROUGH T FORWARD LOSSES THAT THE INCOME CAN BE ASSESSED IN THE HANDS OF THE ASSESSEE . THIS WAS DONE UNDER THE GUISE OF RECTIFICATION U/S 154 OF THE ACT. WHEN SUCH AN INCOME BECOMES ASSESSABLE IN THE HANDS OF THE ASSESSEE THE ASSESSE E IS ALSO ENTITLED TO THE DEDUCTION AVAILABLE UNDER THE ACT. THE AO IS NOT JU ST A TAX COLLECTOR, HE IS TO ASSESS THE CORRECT INCOME AND COLLECT THE CORRECT T AX. THIS IS WHERE THE ISSUE BECOMES A DEBATABLE ISSUE IN SO FAR AS BY DOING THE RECTIFICATION THE AO DENIED THE ASSESSEE THE BENEFIT OF BROUGHT FORWARD LOSS AND THE STATUTORILY AVAILABLE DEDUCTION U/S 80P OF THE ACT. THESE ARE I NTER-LINKED AND IT CANNOT BE DONE IN A RECTIFICATION PROCEEDINGS. CONSEQUENTL Y, AS THE ISSUE INVOLVED IS A HIGHLY DEBATABLE ISSUE, WE ARE OF THE VIEW THAT T HE ORDER PASSED U/S 154 OF THE ACT BY THE AO AND AS CONFIRMED BY THE LEARNED C IT (A) IS UNSUSTAINABLE AND CONSEQUENTLY THE SAME ARE HEREBY QUASHED. 4 ITA NO.172/JODH/2015 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.03.2016. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED: 15 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 15.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 16.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 16.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 16.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 16.03.16 SR.PS 6. DATE OF PRONOUNCEMENT 15.03.16 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER